Official blog of the American Civil Liberties Union (ACLU) of Pennsylvania

Friday, August 22, 2008

Friday First Amendment Roundup: August 22, 2008

Another relatively quiet week in the United States. Maybe the totalitarians in our country are too busy hypocritically shaking their heads at China and Russia to spend time attacking our own constitution?

Starting off once again in China, the civil-liberties Goofus to our Gallant - though that's being a bit generous toward the US, I think.

This week Chinese authorities arrested two septuagenarian (nearly octogenarian) women and sentenced them to a year of "reeducation" through forced labor. Why? Because they demonstrated against the demolition of their homes in Beijing in order to prepare for the Olympics.According to the Associated Press the "reeducation system" in China is over 50 years old, and sentencing does not require a criminal trial - the police are free to send people into reeducation at their discretion, for up to four years.

The two women, ages 77 and 79, remained at home three days after their sentence, but were "under surveillance by a government-backed neighborhood group." That last bit reminds me of Operation TIPS.Hey, at least in this country when we imprision septegeunarians without any trial, we don't make them work. Hell, we barely let them go outside!

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So, as US citizens (including our President) are busy decrying the abuse of human rights in China, the Executive Branch is sneaking up behind us with vastly expanded new powers - who's in charge over there, again?

Democratic Senators Feingold, Kennedy, Durbin and Whitehouse (whom I really, really want to be President someday, solely for the sake of nomitive determinism) sent an open letter to Attorney General Michael "Not every violation of the law is a crime" Mukasey expressing their concern over the new guidelines being drafted for the FBI, which would appear to send us back to the Hoover era, including unresricted surveillance of American citizens without any documented suspicion, interviewing neighbors and coworkers under the false pretext of suspicion, and persecuting Americans based on race, religion, and First Amendment activities. You know, the kind of stuff the FBI has been doing secretly pretty much forever.

The Senators have asked Mukasey not to sign off and finalize the new guidelines until Congress has had input on them. What do you suppose are the Vegas odds on that?

***

A federal judge has ruled that Arizona cannot enforce a state law that would prosecute an online merchant for selling anti-war t-shirts.

Dan Frazier, of Flagstaff, makes and sells t-shirts that read "Bush Lied - They Died" and then list the names of all US troops who have died in Iraq.An Arizona law, enacted in 2007 with almost no debate, forbids the sale of any product that uses the name of a military casualty without family permission. Louisianna, Tennessee and Oklahoma also have similar laws.

Judge Neil Wake this week blocked Arizona from enforcing its law, stating that Frazier's shirts represented "core political speech."The ACLU represented Frazier in his case; the ACLU is also representing him in a federal lawsuit, where the family of a Tennessee soldier killed in Iraq is attempting to sue Frazier for $40 billion. Lee Phillips, a Flagstaff attorney who represented Frazier on behalf of the ACLU, pointed out that the Arizona law may still be enforceable in cases where the products in question were not motivated as political speech.

***Some news in the epic battle between God and Darwin this week - and I've got to say, for an all-powerful Deity, God sure does lose a lot.

In California, a coalition of Christian schools is suing the State University system, demanding that California state colleges award credit for the religious high school courses they currently do not recognize. For instance, the group wants high school students who were taught that the world was created in seven days, just like the Bible says, to get full credit for biology class.

The Christian schools claim that refusal to award full academic credit for these courses represents religious discrimination; the University System responds that it was not discriminating against the religious message in the course material, but rather the total lack of any actual history, science, or critical thinking.The California case was filed in 2005 and dismissed this past week. The Association of Christian Schools International, who filed the suit, has appealed.

***

A pair of mayors, separated by geography, are this week united by their contempt for free speech.

Colonial Beach, VA mayor Frederick Rummage [whose name will become ironic in the next paragraph] was so horrified by an area journalist's research and investigation at Town Hall that he kicked her off the premises, and has declared that all citizens will now be required to file written Freedom of Information Act requests before they can review any of the city's public records or documents.

In a conversation with local reporter Marty van Duyne, Mayor Rummage "accused [reporter Anne Congdon] of “moving around, lurking, and looking” for no other reason than to find out about internal operations." According to van Duyne, Rummage seemed baffled and annoyed that Congdon would spend six hours investigating, researching, and (wait for it!) rummaging through public records. Well, yeah Fred... she's a reporter.

Rummage has declared that he is rewriting the city's FOIA guidelines. His practices appear to be a blatant violation of Virginia's sunshine laws. As of yet no suit has been filed.

Meanwhile in Manalapan, New Jersey, former major George Spodak doesn't care for criticism, and he is going to do something about it! Spodak has filed a libel lawsuit against a number of anonymous bloggers who have called him, according to the New Jersey Star-Ledger "a liar, a crook, a bum, a pedophile, an alcoholic, a wife beater -- and worse."

Last year, Spodak's attorneys subpoenaed Google in order to learn the identities of these bloggers, but a state Superior Judge threw out the subpoena. Spodak's attorneys feel that this lawsuit has a better chance, because Spodak has been out of office for 24 years and is no longer major, but now a private citizen. The Star-Ledger points out that Spodak is still very active in town politics, and frequently speaks at township meetings.

"You have the constitutional right to speak anonymously," said Matt Zimmerman, attorney for the Electronic Frontier Foundation, which is representing the anonymous bloggers. "You can't use the court as an investigatory tool simply to out critics."

"Anonymity is fine," said Spodak's attorney Lawrence Kleiner. "But I don't think you can accuse someone of being a pedophile ... and hide behind the Constitution."

***

The California Supreme Court has ruled that while doctors are free to live by their religious principles, when they operate a business their religious freedom does not permit them to deny medical services based on illegal discrimination.

The case in question involved Guadalupe T. Benitez, who sought to be artificially inseminated at North Coast Women's Care Medical Group by Dr. Christine Brody. Dr. Brody refused to perform the procedure on Benitez, claiming her religious beliefs would not allow her to help impregnate an unmarried woman. Benitez is a lesbian, with a committed partner who joined her at meetings with Dr. Brody.

The Court's ruling says that, while any doctor may legally refuse to perform any procdure based on religious beliefs, he or she may not choose to perform that procedure on some patients, and then deny it to others. As the LA Times puts it:

A clothing store may choose not to sell polo shirts. But once it sells polo shirts, it cannot withhold them from customers based on their race, religion, sexual orientation and so forth. Various religious groups, including Jewish and Islamic clergy, sided with the doctors in this case. It's intriguing to ponder what they would make of a doctor who declined, based on personal convictions, to provide care for patients who belonged to religious minorities.

***

You may remember Ponce de Leon school district in Florida - they are the school district that was recently ordered to allow students to form a Gay-Straight Alliance (and to allow them to use the word "gay.") Well, this past week the school district began court-mandated sensitivity training, and for some reason the AP saw it as newsworthy (enough to merit a 925-word article) that the town at large supports the former high school principal.

This is former principal David Davis [$5 says his friends call him "Dave"] who, when one of his seniors (identified only as Jane Doe) told him she was being taunted by her classmates as a lesbian, admonished her that homosexuality is wrong, outed her to her parents, and labeled her a sexual predator, ordering her to stay away from children. Former principal Davis who suspended her friends for showing support by wearing gay-pride T-shirts and buttons. Former principal Davis who ran his own miniature homophobe HUAC investigation, asking dozens of students whether they were gay or associated with gay students. According to the AP:

"Davis embarked on what can only be characterized as a 'witch hunt' to identify students who were homosexual and their supporters, further adding fuel to the fire," U.S. District Judge Richard Smoak recounted in his ruling. "He went so far as to lift the shirts of female students to insure the letters 'GP' or the words 'Gay Pride' were not written on their bodies."

So thanks, AP, for informing us that the residents of Ponce de Leon, Florida, generally regard David Davis as a hero.

"David Davis is a fine man and good principal, and we are a gentle, peaceful, Christian, family-oriented community," said Bill Griffin, 73 and a lifelong Ponce de Leon resident who is no relation to the district superintendent. "We aren't out to tar and feather anyone."

Not tarred and feathered, no, but Jane Doe and many of her friends report that they have been ostracized by their community. Heather Gillman, who took part in the suit, reports being harassed by an employee at the local Wal-Mart for trying to "bankrupt the school district," and some residents refuse even to talk to students involved in the suit.

"Many in the community support Davis and feel outsiders are forcing their beliefs on them. Griffin, who kicked Davis out of the principal's office but allowed him to continue teaching at the school, said high schoolers here aren't exposed to the same things as kids in Atlanta or Chicago."

"We are a small, rural district in the Bible Belt with strong Christian beliefs and feel like homosexuality is wrong," said Steve Griffin, Holmes County's school superintendent, who keeps a Bible on his desk and framed Scriptures on his office walls."

We here at Speaking Freely may not have quite the reach that the AP does, but here's a message for "Jane Doe" and Heather Gillman and all the other students who have the misfortune of growing up in a place like Ponce de Leon, Florida: the rest of us are on your side.Oh, and also: get the hell out of Ponce de Leon. As soon as possible. I hear Atlanta and Chicago are nice.

[A quick plug here for Slap Upside The Head, a Canadian blog whose cartoons I loved so much that I used them without permission. Go visit the blog so they won't get mad!!]

3 Comments:

Judge Edward Nottingham put me in jail three times for 5 months without a.) Citing an Act of Congress as required by the U.S. code b.) Issuing a statement that I had disrupted a hearing which is required for use of summary procedure (I was very polite and controlled. I read Federal Procedure Lawyer's Edition quotations) c.) Asking a U.S. attorney to act as prosecutor, which is required in a contempt proceeding. He did this to retaliate against my first amendment activities. I don't have a criminal record at all. I verified all my civil court filings under penalty of perjury but not a single sentence was pointed out as fraudulent or perjurious. He jailed me to suppress my complaints about government corruption.

I was not subpoened nor was any notice sent by the court accusing me of contempt. The assistant U.S. attorney, Robert Anderson, appeared and said that "the government was not a part of this". The acting magistrate, court clerk Theresa Owens, said she was concerned about her authority but that she spoke to Judge Nottingham and he informed her that he wanted me imprisoned. So she ordered me imprisoned and sent 1200 miles in chains. I was held for 22 days and stripped searched at gunpoint. Then Judge Nottingham said "whoops".

My congressional rep, Tammy Baldwin, helped me find out that the U.S. Marshals were holding records of my first amendment activities, which is prohibited by the Privacy Act. Judge Nottingham denied our motion to state the statutory basis and evidence supporting sanctions. The D of WWI ignored my motion to state their statutory authority for ordering me sent to Judge Nottingham.

You wrote:"Meanwhile in Manalapan, New Jersey, former major George Spodak doesn't care for criticism, and he is going to do something about it! Spodak has filed a libel lawsuit against a number of anonymous bloggers who have called him, according to the New Jersey Star-Ledger 'a liar, a crook, a bum, a pedophile, an alcoholic, a wife beater -- and worse.'"

Uh, I'm not a New Jersey lawyer, but that probably is actionable defamation, whether Spodak is a public figure or not. Not the "liar, crook, bum" part - that's just vague hyperbole and opinion - but specific accusations of criminal behavior like "pedophile" and "wife beater", if false, are not protected speech. I like EFF, but think they're wrong in this case. Expression on the internet deserves as much protection under the Free Speech clause as in any other medium, but not more. There is a free speech right to speak anonymously. There is no free speech right to defame someone anonymously, whatever the forum.

Just reading what I can find about this case online, your reference to a judge throwing out a similar subpoena relates to a case involving attorney malpractice. The judge quashed that subpoena because it wasn't seeking evidence relevant to the malpractice issue. But Spodak's claim seems squarely on point: Defamatory statements were made, and he seeks discovery to find out who made them so he can sue them. Maybe the EFF attorney, Zimmerman, thinks that Spodak is in cahoots with the city to uncover datruthsquad's identity. Maybe he's right, but that's irrelevant to whether Spodak should get his day in court or not.

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